1. Mediation ethics
Lecturer: Dana Rone
16 January, 2019

2. EUROPEAN CODE OF CONDUCT FOR MEDIATORS
A number of principles to which individual mediators may voluntarily decide to commit themselves, under their own responsibility.
It may be used by mediators involved in all kinds of mediation in civil and commercial matters.
Organizations providing mediation services may also make such a commitment by asking mediators acting under the auspices of their organisation to respect the code of conduct.
Organizations may make available information on the measures, such as training, evaluation and monitoring, they are taking to support the respect of the code by individual mediators.
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3. Competence
Mediators must be competent and knowledgeable in the process of mediation.
Relevant factors include proper training and continuous updating of their education and practice in mediation skills, having regard to any relevant standards or accreditation schemes.
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4. Appointment
Mediators must confer with the parties regarding suitable dates on which the mediation may take place.
Mediators must verify that they have the appropriate background and competence to conduct mediation in a given case before accepting the appointment.
Upon request, they must disclose information concerning their background and experience to the parties.
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5. Fees
Where not already provided, mediators must always supply the parties with complete information as to the mode of remuneration which they intend to apply.
They must not agree to act in a mediation before the principles of their remuneration have been accepted by all parties concerned.
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6. Promotion of mediator’s services
Mediators may promote their practice provided that they do so in a professional, truthful and dignified way.
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7. Independence
If there are any circumstances that may, or may be seen to, affect a mediator's independence or give rise to a conflict of interests, the mediator must disclose those circumstances to the parties before acting or continuing to act.
Such circumstances include:
any personal or business relationship with one or more of the parties;
any financial or other interest, direct or indirect, in the outcome of the mediation;
the mediator, or a member of his firm, having acted in any capacity other than mediator for one or more of the parties.
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8. Independence
In such cases the mediator may only agree to act or continue to act if he is certain of being able to carry out the mediation in full independence in order to ensure complete impartiality and the parties explicitly consent.
The duty to disclose is a continuing obligation throughout the process of mediation.
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9. Impartiality
Mediators must at all times act, and endeavour to be seen to act, with impartiality towards the parties and be committed to serve all parties equally with respect to the process of mediation.
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10. Procedure
The mediator must ensure that the parties to the mediation understand the characteristics of the mediation process and the role of the mediator and the parties in it.
The mediator must in particular ensure that prior to commencement of the mediation the parties have understood and expressly agreed the terms and conditions of the mediation agreement including any applicable provisions relating to obligations of confidentiality on the mediator and on the parties.
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11. Procedure
The mediation agreement may, upon request of the parties, be drawn up in writing.
The mediator must conduct the proceedings in an appropriate manner, taking into account the circumstances of the case, including possible imbalances of power and any wishes the parties may express, the rule of law and the need for a prompt settlement of the dispute.
The parties may agree with the mediator on the manner in which the mediation is to be conducted, by reference to a set of rules or otherwise.
The mediator may hear the parties separately, if he deems it useful.
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12. Fairness of the process
The mediator must ensure that all parties have adequate opportunities to be involved in the process.
The mediator must inform the parties, and may terminate the mediation, if:
a settlement is being reached that for the mediator appears unenforceable or illegal, having regard to the circumstances of the case and the competence of the mediator for making such an assessment, or
the mediator considers that continuing the mediation is unlikely to result in a settlement.
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13. The end of the process
The mediator must take all appropriate measures to ensure that any agreement is reached by all parties through knowing and informed consent, and that all parties understand the terms of the agreement.
The parties may withdraw from the mediation at any time without giving any justification.
The mediator must, upon request of the parties and within the limits of his competence, inform the parties as to how they may formalise the agreement and the possibilities for making the agreement enforceable.
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14. Confidentiality
The mediator must keep confidential all information arising out of or in connection with the mediation, including the fact that the mediation is to take place or has taken place, unless compelled by law or grounds of public policy to disclose it.
Any information disclosed in confidence to mediators by one of the parties must not be disclosed to the other parties without permission, unless compelled by law.
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15. MODEL STANDARDS OF CONDUCT FOR MEDIATORS
The Model Standards of Conduct for Mediators was prepared in 1994 by the American Arbitration Association, the American Bar Association’s Section of Dispute Resolution, and the Association for Conflict Resolution.
A joint committee consisting of representatives from the same successor organizations revised the Model Standards in 2005.
Both the original 1994 version and the 2005 revision have been approved by each participating organization.
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16. Self determination
A mediator shall conduct a mediation based on the principle of party self-determination.
Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.
Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.
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17. Self determination
Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.
A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.
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18. Self determination
A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.
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19. Impartiality
A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner.
Impartiality means freedom from favoritism, bias or prejudice.
A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality
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20. Impartiality
A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason.
A mediator should neither give nor accept a gift, favor, loan or other item of value that raises a question as to the mediator’s actual or perceived impartiality.
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21. Impartiality
A mediator may accept or give de minimis gifts or incidental items or services that are provided to facilitate a mediation or respect cultural norms so long as such practices do not raise questions as to a mediator’s actual or perceived impartiality.
If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.
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22. Conflict of interest
A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation.
A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.
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23. Conflict of interest
A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator.
A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.
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24. Conflict of interest
A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality.
After disclosure, if all parties agree, the mediator may proceed with the mediation.
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25. Conflict of interest
If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable.
After disclosure, if all parties agree, the mediator may proceed with the mediation.
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26. Conflict of interest
If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.
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27. Conflict of interest
Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation.
When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.
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28. Competence
A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.
Any person may be selected as a mediator, provided that the parties are satisfied with the mediator’s competence and qualifications.
Training, experience in mediation, skills, cultural understandings and other qualities are often necessary for mediator
competence. A person who offers to serve as a mediator creates the expectation that the person is competent to mediate effectively.
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29. Competence
A mediator should attend educational programs and related activities to maintain and enhance the mediator’s knowledge and skills related to mediation.
A mediator should have available for the parties’ information relevant to the mediator’s training, education, experience and approach to conducting a mediation.
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30. Competence
If a mediator, during the course of a mediation determines that the mediator cannot conduct the mediation competently, the mediator shall discuss that determination with the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance.
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31. Competence
If a mediator’s ability to conduct a mediation is impaired by drugs, alcohol, medication or otherwise, the mediator shall not conduct the mediation.
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32. Confidentiality
A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.
If the parties to a mediation agree that the mediator may disclose information obtained during the mediation, the mediator may do so.
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33. Confidentiality
A mediator should not communicate to any non-participant information about how the parties acted in the mediation.
A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution.
If a mediator participates in teaching, research or evaluation of mediation, the mediator should protect the anonymity of the parties and abide by their reasonable expectations regarding confidentiality.
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34. Confidentiality
A mediator who meets with any persons in private session during a mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person.
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35. Confidentiality
A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.
Depending on the circumstance of a mediation, the parties may have varying expectations regarding confidentiality that a mediator should address.
The parties may make their own rules with respect to confidentiality, or the accepted practice of an individual mediator or institution may dictate a particular set of expectations.
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36. Quality of the process
A mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.
A mediator should agree to mediate only when the mediator is prepared to commit the attention essential to an effective mediation.
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37. Quality of the process
A mediator should only accept cases when the mediator can satisfy the reasonable expectation of the parties concerning the timing of a mediation.
The presence or absence of persons at a mediation depends on the agreement of the parties and the mediator.
The parties and mediator may agree that others may be excluded from particular sessions or from all sessions.
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38. Quality of the process
A mediator should promote honesty and candor between and among all participants, and a mediator shall not knowingly misrepresent any material fact or circumstance in the course of a mediation.
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39. Quality of the process
The role of a mediator differs substantially from other professional roles.
Mixing the role of a mediator and the role of another profession is problematic and thus, a mediator should distinguish between the roles.
A mediator may provide information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with these Standards.
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40. Quality of the process
A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation.
A mediator may recommend, when appropriate, that parties consider resolving their dispute through arbitration, counseling, neutral evaluation or other processes.
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41. Quality of the process
A mediator shall not undertake an additional dispute resolution role in the same matter without the consent of the parties.
Before providing such service, a mediator shall inform the parties of the implications of the change in process and obtain their consent to the change.
A mediator who undertakes such role assumes different duties and responsibilities that may be governed by other standards.
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42. Quality of the process
If a mediation is being used to further criminal conduct, a mediator should take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.
If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.
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43. Quality of the process
If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.
If a mediator believes that participant conduct, including that of the mediator, jeopardizes conducting a mediation consistent with these Standards, a mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.
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44. Advertising and soliciting
A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees.
A mediator should not include any promises as to outcome in communications, including business cards, stationery, or computer-based communications.
A mediator should only claim to meet the mediator qualifications of a governmental entity or private organization if that entity or organization has a recognized procedure for qualifying mediators and it grants such status to the mediator.
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45. Advertising and soliciting
A mediator shall not solicit in a manner that gives an appearance of partiality for or against a party or otherwise undermines the integrity of the process.
A mediator shall not communicate to others, in promotional materials or through other forms of communication, the names of persons served without their permission.
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46. Fees and other charges
A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation.
If a mediator charges fees, the mediator should develop them in light of all relevant factors, including the type and complexity of the matter, the qualifications of the mediator, the time required and the rates customary for such mediation services.
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47. Fees and other charges
A mediator’s fee arrangement should be in writing unless the parties request otherwise.
A mediator shall not charge fees in a manner that impairs a mediator’s impartiality.
A mediator should not enter into a fee agreement which is contingent upon the result of the mediation or amount of the settlement.
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48. Fees and other charges
While a mediator may accept unequal fee payments from the parties, a mediator should not allow such a fee arrangement to adversely impact the mediator’s ability to conduct a mediation in an impartial manner.
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